Boudreau v. Eastman

Full title: BOUDREAU v. EASTMAN

Court: Supreme Court of New Hampshire Grafton

Date published: Dec 1, 1879

59 N.H. 467 (N.H. 1879)

Opinion

Decided December, 1879.

When a suit is brought by an agent of an undisclosed principal in his own name, the writ may be amended by substituting the principal for the agent as plaintiff of record, or the principal may appear and prosecute the suit as plaintiff in interest; and the amendment may be made after the trial, without disturbing the verdict, when neither the course nor the result of the trial would have been changed by the amendment if it had been made before the trial.

CASE, for deceit in an exchange of horses. Facts found by a referee. The plaintiff had in his possession a horse belonging to his brother, which he was authorized to dispose of as he chose. He exchanged it with the defendant for a horse belonging to one Gilman, which the defendant intended the plaintiff should suppose, and which the plaintiff did suppose, was the defendant's. Nothing was said by either party about the ownership of either horse. The defendant was not authorized to make the exchange; and the plaintiff having disposed of Gilman's horse, Gilman brought an action of trover against him, which this plaintiff settled by the payment of $100. The defendant objected that the plaintiff's brother should have been plaintiff.

Farr and Stevens, for the plaintiff.

Bingham, Mitchell Batchellor, for the defendant.

BINGHAM, J.

It does not appear to be material whether the plaintiff, or his brother, the undisclosed principal and plaintiff in interest, is plaintiff of record. The writ may be amended by substituting the brother for the plaintiff (Judge of Probate v. Jackson, 58 N.H. 458), or by an entry that the brother appears and prosecutes the action as plaintiff in interest. Folsom v. O. F. Ins. Co., 59 N.H. 54. As neither the course nor the result of the trial would have been affected by such an amendment if it had been made before the trial, it may be made now without a new trial. Roulo v. Valcour, 58 N.H. 347. Let the record show the truth. When the amendment is made, there will be

Judgment for the plaintiff.

SMITE, J., did not sit: the others concurred.